Raj Narayan Kundu, Trustee vs Krishna Moti Dassi and Others

Das Gupta, J.—This appeal raises a question about the validity of a sale held in contravention of the provisions of section 168A of the Bengal Tenancy Act. The appeal was first heard by Roxburgh, J., who, while rejecting the plaintiff-appellant''s contention that the presumption of correctness of the settlement record has been rebutted, still held that the plaintiff had obtained by the sale in execution of a rent decree the right, title and interest of defendant No. 2 in the lands though they were not included in the holding in respect of which the sale took place, and that the sale, though held in contravention of the provisions of section 168A, was "certainly not void". On a review application before Chunder, J., to whom the learned Chief Justice sent the matter for hearing, review was allowed, the judgment and decree of Roxburgh, J., were set aside and the", appeal restored for hearing. The appeal has thereafter come up to this Bench for decision. The first point raised by Mr. Panchanan Choudhury on behalf of the appellant-who it is to be remembered was successful before Roxburgh. J.-is that the review was wrongly allowed. We are clearly of opinion that it is not open to this Court to consider now whether the review was rightly allowed or not and we must proceed on the basis that the order passed by Chunder, J., allowing the review is legally valid and that the judgment and decree passed by Roxburgh, J., is no longer in force and the appeal has to be reheard.

The suit was in respect of two plots of land being dag Nos. 469 and 357 of Mouza Muktikiri. During the settlement operations Dag No. 469 was recorded as appertaining to a jama of Rs. 9 held by Defendant No. 2 Netai Malo under the defendants Nos. 3 to 6 of the present suit, while the other plot -dag No. 357-was recorded as appertaining to a jama of Rs. 2-6-6 held by Netai Malo under the predecessors of defendants Nos. 3-4. The plaintiff''s case is that these records are wrong and that in fact both these plots appertain to a jama of Rs. 25-4 held by defendant No. 2, Nitai Malo under the plaintiff, and that the plaintiff acquired them by purchase in execution of a decree for rent. Both the courts below held that the presumption of the settlement record has not been rebutted and dismissed the suit.

As we pointed out to the learned Advocate on behalf of the appellant at the time of the argument, the learned Courts below came after a full consideration of the evidence on the record to the conclusion that the presumption of correctness of the settlement record has not been rebutted and it was not open for us to go into the evidence to consider whether that decision was correct or not. The decision of the Court below is a finding of fact which is binding on us in second appeal so that the question whether the plaintiff can have any success in his suit must depend on the further question whether in spite of these two lands not being part of the holding appertaining to the jama of Rs. 25-4 the plaintiff has acquired any title thereto by the purchase in execution of a rent decree.

The only obstacle to this in the plaintiff''s way is in the provisions of section 168A of the Bengal Tenancy Act. That section provides that "notwithstanding anything contained elsewhere in this Act, or in any other law, or in any contract a decree for arrears of rent due in respect of a tenure or holding, whether having the effect of a rent decree or money decree....., shall not be executed by the attachment and sale of any movable or immovable property other than the entire tenure or holding to which the decree......relates." In view of the fact that the presumption of correctness of the settlement record that these, plots did not appertain to the holding to which the decree related, the sale of these plots in execution of the decree for arrears of rent was clearly in contravention of this provision of section 168A. The question is whether the consequence of this contravention is that the sale is a nullity or that in spite of the contravention, the plaintiff obtained good title to these lands thereby. In Shiba Bala Dasi v. Kanai Lal Mandal (1) (1949) 1 Cal. 267, Mitter and Chunder, JJ., held in a case where the terms of sub-section (1) of section 168A of the Bengal Tenancy Act had been contravened that the sale was a nullity. No reason, however, has been given for this decision and the Court appears to have assumed that if the provisions of section 168A of the Bengal Tenancy Act are contravened the sale would be a nullity. Mr. Panchanan Choudhury has tried to convince us that the view expressed by this Court in that case was incorrect.

The question how far a contravention of a statutory provision makes the transaction a nullity has come up before the Court for consideration in many cases. In Ashutosh Sikdar v. Behari Lal Kirtunia (2) (6 C.L.J. 320), Sir Ashutosh Mookerjee, J., observed that "no hard and fast line can be drawn between a nullity and an irregularity" and a useful test as laid down in Holmes v. Russel, (3) (1841) 9 Dowl. 487, is in these words:

It is difficult sometimes to distinguish between an irregularity and a nullity, but the safest rule to determine what is an irregularity and what is a nullity, is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity, if he cannot, it is a nullity.

In Sarjugasharam v. Dukhit Mahato, (4) (17 C.W.N. 496), the Court had to consider whether a decree for rent passed in accordance with a compromise in contravention of the provisions of section 147 of the Bengal Tenancy Act was made without jurisdiction. It was held that the tenant could not waive the provisions of law and so the sale amounted to a nullity. In giving the reasons for this decision Coxe and N.R. Chatterjea, JJ., said:

It was evidently the intention of the Legislature to remove the whole matter from the tenant''s control, and the possibility of a waiver by him is just the mischief against which the enactment is aimed.

In Messrs Sadasook Ramprotap v Hoare Miller and Co., (5) (27 C.W.N. 733) Sir Ashutosh Mookerjee. J., had occasion to refer to the matter again and he repeated in substance what he had earlier said in the case of Ashutosh Sikdar v. Behari Lal Kirtunia (2) (6 C.L.J. 320) in these words:

Our attention has been drawn to the cases of Ashutosh Sikdar v. Beharilal Kirtunia, Manindra Chandra Nandi v. The Secretary of State for India in Council and Bholanath Ray v. The Secretary of State for India in Council to establish the position that even though a statutory provision may be expressed in a mandatory form, noncompliance therewith does not necessarily invalidate a transaction. This position is incontestable and the answer to the question whether it is permissible to waive a particular provision depends upon its true nature. If the object of the legislature is to protect or benefit an individual litigant, it is open to him to waive the positive provisions of the statute. On the other hand, if the provision has been enacted from reasons of public policy, he cannot be permitted to waive it.

Mr. Choudhury has asked us to hold that the provisions of sec, 168A fell within the former class and was really intended to protect or benefit the tenant. So he argues that it was open to the tenant to waive the provisions of the statute, so that the sale held in contravention of the provisions should not be considered a nullity.

In applying the principle as laid down by Sir Ashutosh Mookerjee, J., the correctness of which is not and cannot be disputed it is to be remembered that in a sense every provision of law; is on the ground of public policy and again every provision of law is intended to benefit some people. What is to be decided in considering the question whether a particular provision can be waived or not is whether the legislature intended the matter to be a matter of public policy quite apart from the interest of the individual litigant. For this purpose the nature of the provision has to be carefully considered. If section 168A had not contained the opening words "notwithstanding anything contained elsewhere in this Act, or in any other law, or in any contract'', I might have been persuaded to believe that this was a legislation primarily intended to benefit the tenant against whom a decree had been obtained and was not a question of public policy. The opening words can not, however, be ignored. The most important are the words "not-withstanding anything contained in any contract". As has been pointed out in numerous cases waiver is contractual in nature. The fact that the legislature thought fit to exclude the operation of any contract between the parties on the provision that a decree for arrears of rent shall not be executed by the attachment and sale of any movable or immovable property other than the holding itself is conclusive proof in my judgment that the legislature intended to put the matter out of the control of the parties as a matter of public policy quite distinct from the question of benefit to the tenant.

Applying, therefore, the principle mentioned above I find it impossible to escape the conclusion that it was not open to the tenant to waive this provision of section 168A of the Bengal Tenancy Act and consequently the sale held in contravention thereof was a nullity. As already indicated this view is in accord with what was held in the case of Shiba Bala Dasi v. Kanai Lal Mandal, (1) (1949) 1 Cal. 267.

My conclusion, therefore, is that the suit was rightly dismissed by the courts below. I would, therefore, dismiss the appeal with costs.

Guha, J.

I agree.